The fact is, it does not matter whether or not a game is sold or credit is given to Nintendo, it would still be a violation of copyright or trademark. The only point where the free vs. commercial comes into play is when deciding the amount of damages to pay. Someone selling a game that violates copyright is going to dish out a lot more money than someone giving it away for free.

Is it likely that Nintendo will sue? No. Is it possible? Absolutely. The best course of action is always to avoid using any content that can cause this sort of legal trouble. Advising otherwise is irresponsible.

I know this project you mention. They shut it down because it was becoming too popular. The reasons for this are quite obvious.

They didn't hunt them down or anything of the sort. Just put a stop into it. You're more likely getting hit by lightning twice in a week than getting sued to the bone by making a small pokemon fan game.

Is it likely that Nintendo will sue? No. Is it possible? Absolutely. The best course of action is always to avoid using any content that can cause this sort of legal trouble. Advising otherwise is irresponsible.

If you go around being scared someone might sue you, I hope you don't live in the US.

My game's rules involve "activating" a card, where you turn it 89 degrees.

Turning it 90 degrees was just an easy indicator when playing the real TCG. When you have all the graphical posibilities in the world, why would you go with turning a card? There are much better ones, but they don't work in real life.

Is it likely that Nintendo will sue? No. Is it possible? Absolutely. The best course of action is always to avoid using any content that can cause this sort of legal trouble. Advising otherwise is irresponsible.

If you go around being scared someone might sue you, I hope you don't live in the US.

Is it likely that Nintendo will sue? No. Is it possible? Absolutely. The best course of action is always to avoid using any content that can cause this sort of legal trouble. Advising otherwise is irresponsible.

If you go around being scared someone might sue you, I hope you don't live in the US.

Fear of being sued has nothing to do with it. There's a big difference from someone suing you because they slipped on ice in your driveway and a company suing you for blatantly copying their stuff. When someone asks advice on this issue, I very much think it's wrong to tell them not to worry about it. They need to be aware that a cease & desist order can come at any time, at which point all their effort is for naught. That can be a huge let down for someone who isn't expecting it. Much better to avoid that disappointment completely by using legally available content. Still, if they continue to insist on going down the copying road, at least give them enough info that they do it with their eyes open.

Riding on the coattails of an existing IP is a valid reason to sue for infringement. If your game is popular not because of it's mechanics, but because of the IP it is based off (Which happens), you are in essence skipping some of the hardest parts of developing a product (All that promotion and raising awareness and whatnot).

It is understandable that an IP owner doesn't want others to benefit from their work without compensation. And thus is follows that if a project based off another becomes insanely popular, the original IP owner will be pissed.

My recommendation (and personal plan, mind you) is to not rely on the "borrowed" IP for the long term. If the core gameplay you are building takes on a life of its own and starts enjoying some success, phase the "borrowed" content out in favor of original stuff.

Examples of this would be the Quake 3 Dragon Ball Z mod that was forced to remove all DBZ characters and became Bid For Power (retaining the gameplay), or even the Warcraft 3 map Defense of the Ancients, which transitioned into League of Legends because, honestly, the Warcraft 3 IP content was irrelevant to the gameplay.

But just keep in mind, as I do, that if you keep using someone else's toys, they are entitled to just drop by and take them from you.

Riding on the coattails of an existing IP is a valid reason to sue for infringement. If your game is popular not because of it's mechanics, but because of the IP it is based off (Which happens), you are in essence skipping some of the hardest parts of developing a product (All that promotion and raising awareness and whatnot).

It is understandable that an IP owner doesn't want others to benefit from their work without compensation. And thus is follows that if a project based off another becomes insanely popular, the original IP owner will be pissed.

You explain that better than me, thank you so much and sorry for my poor English.

The only point where the free vs. commercial comes into play is when deciding the amount of damages to pay.

I wouldn't put too much weight on that statement. Just because the infringing content was 'free', does mean they cannot claim huge numbers in damages.

The court will consider intent when considering damages. Intent to profit will quite likely result in higher damages than just putting something out there for fun. There's more to it than just that consideration, though.

Attempting to make money gives the owner a bigger stick and more motivation to hit you with it...not making attempting to make money doesn't mean you can't get hit...really, really hard if they decided to. Have some cute children characters performing sexual acts is a fine example of another way to give them a bigger stick and more motivation to hit you.

Even if a work is found to be an unauthorized derivative work, an alleged infringer can escape liability via the defense of fair use. For example, in Campbell v. Acuff-Rose Music, Inc., the Supreme Court found that although a parody of the song "Oh, Pretty Woman" by 2 Live Crew was an unauthorized derivative work, fair use was still available as a complete defense. This case marked the Supreme Court's pointing to transformativeness as a major clue to application of the fair use defense to derivative works.

The defense of fair use has become very important in computer- and Internet-related works. Two 1992 Ninth Circuit decisions are illustrative.

In Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.,[10] the appellate court held that it was a fair use for owners of copies of video games, such as Super Mario Bros., to use Galoob's product the Game Genie to customize the difficulty or other characteristics of the game by granting a character more strength, speed, or endurance. Nintendo strongly opposed Galoob's product, allegedly because it interfered with the maintenance of the "Nintendo Culture," which Nintendo claimed was important to its marketing program.[11] The court held, among other things, that the fair use defense shielded Galoob's conduct. The court said that "a party who distributes a copyrighted work cannot dictate how that work is to be enjoyed. Consumers may use ... a Game Genie to enhance a Nintendo Game cartridge’s audiovisual display in such a way as to make the experience more enjoyable."

In Sega Enterprises, Ltd. v. Accolade, Inc.,[12] the court excused Accolade from copyright infringement liability on fair use grounds. Nintendo and Sega produced video game consoles. Each stored the games in plastic cartridges that provided game data to the consoles. By way of analogy, the Sega hardware console's “platform” differed from Nintendo's, as a Macintosh platform differs from that of a PC. Hence, a video game cartridge that works on one system does not work on the other. Sega and Nintendo sought to “license” access to their hardware platforms, and each company developed software "locks" to keep out cartridges that did not have the proper "key." Accolade sought a license from Sega for its key, but negotiations broke down over price. Accolade then decided to reverse engineer Sega's lock and key system. To do so, it had to download (copy) all of the computer code from Sega's product and disassemble it (translate it from machine code into human-readable assembly). Accolade succeeded and began to market new video games that it independently wrote, which were capable of being operated in Sega consoles. This led to copyright infringement litigation, in which Sega alleged that the downloading was improper copying (reproduction) of Sega's code. The court held that Sega was trying to use the copyright in its computer code to maintain a monopoly over the sale of video games, to which it was not legally entitled. Accolade downloaded the computer code only to ascertain how the lock worked, so that it could make a key that would permit its games to work in Sega consoles. The court held that such a use was fair use: "We conclude that where disassembly is the only way to gain access to the ideas and functional elements embodied in a copyrighted computer program and where there is a legitimate reason for seeking such access, disassembly is a fair use of the copyrighted work, as a matter of law."

It could be argued that fangames that drastically alter the content/gameplay (Or add their own) are transformative enough to warrant definition as a derivative work.

Then again, even if this argument could be made, small individuals with little funds wouldn't be able to mount an effective legal defense against big corporations, so it might be a moot point to make.

As an aside, the whole concept of producers of a product not having the right to control how that product is used once bought.... Wonder why aren't these used for litigation in the current days of PSN/XBL/iOS/Steam/Origin/Battle.Net market control.

And if you don't have the funds to play the game....well, too bad for you. My question is: So the risk of getting hit is low and the risk of them hitting you hard is low...but why bother taking the risk at all? Low is quite different from zero.

Apologies for the thread Necromancy, but I stumbled upon something relevant to this thread, and didn't think it warranted a new thread on the subject.

So as I've explained above, I'm working on a DooM-based fangame, and even went so far as to write to Zenimax/Bethesda/Id Software about it.

No news on my part, but investigating details about the DooM engine, I came across a project to develop a top-down JavaScript version of DooM (js-doom), which is quite similar to my project concept. When clicking on the link to the site, I came upon this:

In accordance with Mozilla’s copyright infringement policy, this is to notify you of activity occurring on the Mozilla site listed below which infringes on the exclusive intellectual property rights of Id Software LLC, a wholly owned subsidiary of ZeniMax Media Inc. The copyrighted work at issue is Id Software’s proprietary software game DOOM® (“DOOM”). The link below offers an unauthorized derivation or version of Id Software’s DOOM game.

DOOM is a registered trademark and the game assets are copyrighted material. Use of the mark DOOM and copyrighted assets without our authorization and consent, directly violates our trademark and copyright rights in and to such intellectual property. We hereby demand the immediate removal of all such links from your website and written assurance that you will prevent any further infringement of Id Software’s intellectual property rights. I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law. I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Now, I don't know the details of how much said game took from Id Software's original content, or if there were attempts at monetization. Only thing I found was that the game was getting some hype around the net, so maybe that's why it got noticed.

Just thought it'd be interesting to add an example of what happens when the big boys get mad (Or, more precisely, when their lawyers get wind of potential infringements).

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